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Scott Paper Co/Finch, Pruyn & Co - Ruling 3, March 1, 1995

Ruling 3, March 1, 1995

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of

Scott Paper Company

-and-

Finch, Pruyn & Company Inc.

RULINGS ON MOTIONS

Heber Motion

Mr. Heber filed a Motion To Compel Disclosure requesting that the Applicant be required to disclose: 1.) the measurements from end of the runway at Heber Airpark to the Access Road and 2.) the measurements from end of the runway at Heber Airpark to the southwest corner of the proposed landfill. Mr. Heber claims that the Applicant has provided only the distance from the runway end to the proposed landfill cell. Attached to Mr. Heber's Affidavit in Support of the Motion is a letter dated February 6, 1995 to him from Howard Doster, P.E., which states that the scaled distance from the runway to the southwest corner of the landfill property is 5,230 feet based on the Clough, Harbor & associates Drawing G-3 and the Heber Airpark Evaluation Map.

The Applicant opposes Mr. Heber's Motion on the grounds that the appropriate measurement of the distance is from the nearest end of the runway at Heber Airpark to the landfill cell; not the Applicant's property line or the access road. The Applicant refers to the Affidavit of Charles E. Lent, P.L.S., which was submitted with the Applicant's pending motion which is addressed below. Mr. Lent's Affidavit states that he performed a Global Positioning System (GPS) survey and determined that the distance between the easterly end of the runway at Heber Airpark and the closest point of the proposed paper sludge landfill is 7,495 feet, with a relative accuracy of five millimeters (1/5 inch) horizontally.

Mr. Lent further attests that he computed the distance from the easterly end of the runway at Heber Airpark and the closest portion of the Applicant's property to be 5,227 feet.

RULING

6 NYCRR 360-2.12(c)(3) reads in pertinent part as follows: "(i) A landfill or landfill cell into which putrescible solid waste is proposed to be disposed must be located no closer than 5,000 feet from any airport runway used by piston-type aircraft and no closer than 10,000 feet from any airport runway used by turbojet aircraft."

The measurements from end of the runway at Heber Airpark to the southwest corner of the proposed landfill property has been made available to Mr. Heber as part of the Applicant's Motion. The distance from end of the runway at Heber Airpark to the Access Road easement is not relevant to the requirements of 6 NYCRR 360-2.12(c)(3). The Motion To Compel Disclosure is denied.

Applicant's Motion

The Applicant has filed a Motion for summary judgment and an order determining that there are no remaining adjudicable issues because there is no genuine question of material fact as to the applicability of 6 NYCRR 360-2.12 (c)(3). The Applicant based this Motion in large part on information obtained during discovery.

The Applicant claims that all of the aircraft stored at Heber Airpark are fixed-wing, single engine, piston-powered aircraft (Exhibit U, Affidavit of Frank LaVardera); that the distance between the easterly end of the runway at Heber Airpark and the closest point of the proposed paper sludge landfill is 7,495 feet, with a relative accuracy of five millimeters (1/5 inch) horizontally (Affidavit, Survey and Map of Charles E. Lent, P.L.S.); that the minimum runway length to serve turbine powered, fixed-wing aircraft is 2,000 feet (Exhibit P, Affidavit of Frank LaVardera); that the minimum runway length required for multi-engine turbo-jet aircraft is 2,165 feet at sea level (Affidavit of Willy F. Grimmke, P.E.); and that the runway at Heber Airpark is 1,558 feet long (Exhibit S, Affidavit of Frank LaVardera).

In response to the Applicant's Motion for Summary Judgement and Order, Mr. Heber submitted a copy of his letter to Thomas W. Hall, dated February 5, 1995 in which he reiterated that turbine powered aircraft presently land at Heber Airpark. He also submitted a copy of his letter to me, dated February 8, 1995 which states that Heber Airpark is a privately owned, public use airport; and that the proposed landfill cell is within 10,000 feet of Heber Airpark. Mr. Heber also submitted a copy of a letter, dated February 3, 1995, from Woodrow Cahall, Aviation Technical Specialist III, of the Aircraft Owners and Pilots Association which lists 9 models of turbo-prop aircraft which can utilize runways less than 2,000 feet long for take-off and landing.

Discussion: The Commissioner's Interim Decision in this matter, dated December 22, 1994 reads in pertinent part as follows: "There is only one issue that requires adjudication, the question of whether the minimum required distance between airport runways and landfills is satisfied by this application."

There was never any dispute between the Applicant and Mr. Heber that Heber Airpark is used by piston-powered aircraft. Based on discovery, it is also the case that there is now no dispute that the length of the runway at Heber Airpark is 1,558 feet; the distance from the end of the runway to the Applicant's landfill line is more than 5,000 feet and the distance from the end of the runway to the proposed landfill is less than 10,000 feet. In fact, the distance scaled from the maps by Mr. Doster varies by only three feet from the distance surveyed by Mr. Lent. The only outstanding questions are: 1.) the types of aircraft which actually use the airport, and 2.) whether these aircraft can be considered to be "turbojet" aircraft.

RULING

In the interest of administrative efficiency, these questions will be addressed first. The hearing will be reconvened to allow the parties to develop a factual record on the type of aircraft using Heber Airpark. The rule at issue places restrictions on facility siting based on aircraft that are using the airport, not based on the type of aircraft that could theoretically land there. Evidence will be limited accordingly.

As the term turbojet aircraft is not defined in the Department rules, the parties will also have an opportunity, through evidence or argument, to address its meaning. I am particularly interested in understanding the harm/risk that the FAA and the Department foresaw with respect to such aircraft and in determining whether the aircraft that use Heber Airpark are exposed to the same harm/risk through bird hazards.

I will also require that information concerning the distances from the airport runway to the landfill be placed into the record. For efficiency's sake, I will not take evidence at this time regarding any of the questions concerning the Applicant's entitlement to a variance. If the record that is developed demonstrates that the proposed facility siting does not comply with the requirements of 6 NYCRR 360-2.12(c)(3)(i), I will promptly schedule another hearing date to address these issues.

HEARING SCHEDULE

The hearing on the one remaining issue will be held at the NORTHUMBERLAND TOWN HALL, CATHERINE STREET, GANSEVOORT, NEW YORK 12831 on MARCH 7, 1995 at 10:00 A.M.